Evaluating Expert Witness Psychological Reports in Family Court

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Evaluating Expert Witness Psychological Reports in Family Court Professor Jane L. Ireland, University of

Evaluating Expert Witness Psychological Reports in Family Court Professor Jane L. Ireland, University of Central Lancashire, Mersey Care NHS Trust and CCATS Dr Carol A. Ireland; Dr Fiona Wilks-Riley; CCATS and University of Central Lancashire John Pinschof, Private Practice. Copyright Professor Jane L. Ireland, 2012 1

Presentation presented by Dr. Carol A. Ireland Contents • • • General introduction to

Presentation presented by Dr. Carol A. Ireland Contents • • • General introduction to the area Introducing the research Sample Research highlights Specific issues Questions? Copyright Professor Jane L. Ireland, 2012 2

Unfortunately, problems are not a new concept to psychological reports……. Copyright Professor Jane L.

Unfortunately, problems are not a new concept to psychological reports……. Copyright Professor Jane L. Ireland, 2012 3

Previous problems noted with psychological reports (e. g. ’s) • Presenting psychological evidence as

Previous problems noted with psychological reports (e. g. ’s) • Presenting psychological evidence as scientific fact, when it is simply speculation (Hagan, 1997); • Absence of psychological theory (Ireland, 2012); • Failure to provide evidence that is outside the knowledge of a juror (Omerod and Roberts, 2006) • Over-use of psychometrics, not applicable and over-use of jargon (Weiner, 1999) Copyright Professor Jane L. Ireland, 2012 4

Previous problems noted with psychological reports (e. g. ’s) • Psychological risk assessments based

Previous problems noted with psychological reports (e. g. ’s) • Psychological risk assessments based on older approaches (Hart et al, 2007); • Allegations reported as fact (2 Cr App R 7); • Emotive terms that could prejudice a decision (Goodman-Delahunty, 1997) Copyright Professor Jane L. Ireland, 2012 5

The Research • Preliminary piece of research • Assessed the quality of expert psychological

The Research • Preliminary piece of research • Assessed the quality of expert psychological assessments presented in Family Court • Currently, the quality of psychological reports are left to non-psychologists (e. g. Judge), and who may not be in the best position to determine this. o More problematic when the reports are not accessible to other experts in the UK – such as in private or family proceedings – restricts opportunity for peer review Copyright Professor Jane L. Ireland, 2012 6

The Research • Aimed to draw on admissibility criteria for expert evidence that has

The Research • Aimed to draw on admissibility criteria for expert evidence that has been developed elsewhere (Daubert criteria): o The theory or technique must be testable; o It has been subject to peer review; o Has a known or potential error rate (that is, to get it wrong); o The theory and technique is generally accepted by a relevant scientific community. Copyright Professor Jane L. Ireland, 2012 7

The Research • Current criteria used in the UK is the Turner rule o

The Research • Current criteria used in the UK is the Turner rule o This notes if evidence is outside typical knowledge of a juror, and is therefore admissible on the grounds of being helpful as a result (helpfulness) o Yet, it does not allow for the direct testing of the evidence content Copyright Professor Jane L. Ireland, 2012 8

Outline • First research of it’s kind to look at those reports specifically in

Outline • First research of it’s kind to look at those reports specifically in family proceedings • 126 expert psychological reports reviewed covering child and adult assessments; • Three Courts • Four raters using a structured proforma • Focus: on quality with regards to UK Civil Procedure Rules and Daubert Copyright Professor Jane L. Ireland, 2012 9

The sample…. • 79% claimed to be a full member of a British Psychological

The sample…. • 79% claimed to be a full member of a British Psychological Society (BPS) Division; • 81% Clinical Psychologists • 14% Educational Psychologists • 11% Forensic Psychologists • 90% of experts not maintaining a clinical practice outside of Court Work – sole role appeared to be that of completing expert reports. • 21% were not qualified psychologists (that is, not a member of a Division or even a member of the BPS in some circumstances). Copyright Professor Jane L. Ireland, 2012 10

Research Highlights • 65% of reports were rated as ‘poor’ or ‘very poor’; •

Research Highlights • 65% of reports were rated as ‘poor’ or ‘very poor’; • 35% of reports ‘good’ or ‘excellent’; • Problems in reports failing to report the data from where inferences were drawn; more in the direction for those unqualified; • Problems in reports failing to evaluate the quality of their evidence; more in the direction for those unqualified; • Absence of psychological theory across reports. Copyright Professor Jane L. Ireland, 2012 11

Some specific issues • 29% of problematic reports presented insufficient facts and went immediately

Some specific issues • 29% of problematic reports presented insufficient facts and went immediately to opinion; • 22% failed to present the data (e. g. psychometrics) on which they had presented an opinion; Copyright Professor Jane L. Ireland, 2012 12

Some specific issues cont: • 77% of reports included psychometrics; o 19% rated as

Some specific issues cont: • 77% of reports included psychometrics; o 19% rated as not relevant o 40% ‘somewhat’ relevant o 41% ‘greatly/completely’ relevant • Reports used between 1 and 11 tests. Unqualified psychologists significantly more likely to use tests than qualified. • Across the reports 90 DIFFERENT sets of tests were employed…. . Copyright Professor Jane L. Ireland, 2012 13

Example self-generated ‘tests’ • Life snake test • Buttons test • Time Machine •

Example self-generated ‘tests’ • Life snake test • Buttons test • Time Machine • Only cognitive tests (e. g. WAIS), those for Clinical Psychopathy (PCL-R/SV) & some clinical tests (MMPI) would meet Daubert. • Lack of information to allow Courts to judge value (e. g. error rates) • Some extremely out of date tests being used (e. g. WAIS-R, not WAIS-III or WAIS-IV), or just being used incorrectly. Copyright Professor Jane L. Ireland, 2012 14

 • Risk assessments being completed without structured clinical guides: o Of those requesting

• Risk assessments being completed without structured clinical guides: o Of those requesting a violence risk assessment, 1% used a structured test • Using assistants to complete tests and interviews and then writing a report on the basis of this. Copyright Professor Jane L. Ireland, 2012 15

Process – use of language • Use of emotive terms - only 6% used

Process – use of language • Use of emotive terms - only 6% used this ‘greatly’. 21% as ‘somewhat’. Evidence of “interesting” language: o “He seemed grumpy”; o “Uncouth child”; o “Huffed and puffed”; o “Self-centred young woman”; o “She is inadequate”. Copyright Professor Jane L. Ireland, 2012 16

‘Experience’ of experts • Based on provided CVs: o 30% did not have experience

‘Experience’ of experts • Based on provided CVs: o 30% did not have experience of mental health assessments, yet were completing such assessments; o 22% of experts deemed not to have the competence to complete the instructed assessment. o Mainly unqualified psychologists for both e. g. • No forensic experience noted for what is a forensic assessment; • States clinical psychologist but is educational; • No child experience apart from a 6 month placement. Copyright Professor Jane L. Ireland, 2012 17

Straying out of remit/area…. . • 50% stayed in remit; 50% did not, e.

Straying out of remit/area…. . • 50% stayed in remit; 50% did not, e. g. • “even smoking cigarettes will have a serious impact on his health given the present condition of Mr X’s lungs”; • “given the symptoms, I think this child is suffering from diarrhoea” • “The dog X was extremely well behaved and extremely patient”. Copyright Professor Jane L. Ireland, 2012 18

Reports that were ‘poor’ or ‘very poor’. . themes for poor practice: o Use

Reports that were ‘poor’ or ‘very poor’. . themes for poor practice: o Use of graduate or assistant psychologists; o Overuse of psychometrics; o Absence of support for opinion e. g. • “Concludes he has advanced cognitive ability but this has not been assessed”; o Making uninformed psychological statements: • “Does not understand what mental illness and personality disorder is”; • “States he does not have a personality disorder and not assessed it, and then says he does have a personality disorder”. Copyright Professor Jane L. Ireland, 2012 19

o Failing to assess instruction questions; o Reports excessive amounts of expert work e.

o Failing to assess instruction questions; o Reports excessive amounts of expert work e. g. • “ 200 reports a year; over 1000 report in the last few years” o Knowingly using tests that are not relevant; • “I have carried out this test with X although it does not apply as it is only normed for individuals 18 and above” o Misleading about their qualifications; • Alluding to be members of professional (BPS) divisions, but does not state what type (full, student) Copyright Professor Jane L. Ireland, 2012 20

o Limited opinion/report length; o Irrelevant comments: • “She was dressed appropriately for her

o Limited opinion/report length; o Irrelevant comments: • “She was dressed appropriately for her age and weather”; • “She was dressed in a low cut pink dress” • “He likes spaghetti bolognaise and puts his pots away”; o Acting without ethics • E. g. “completed an assessment on the mother without actually seeing her”; • “Completed an assessment in a room in a general visit area with no door, assessment was on sexual disorder”. Copyright Professor Jane L. Ireland, 2012 21

o Poor use of English; o Misunderstanding their role and boundaries; o Narrative comments.

o Poor use of English; o Misunderstanding their role and boundaries; o Narrative comments. • “When I am talking about foster carers and prospective adopters, I often use the story of Pinocchio as an example of such a struggle…. . at present in school, Ms X is like the child’s Jiminy Cricket and that feedback that Pinocchio obtains from extending his nose is the system of rewards and sanctions that are so effectively maintained within the special provision that has been made for X”. Copyright Professor Jane L. Ireland, 2012 22

Criterion for a ‘good’ report • • Adherence to CPR; Limited use of psychometrics;

Criterion for a ‘good’ report • • Adherence to CPR; Limited use of psychometrics; Concise language with limited use of jargon; Avoidance of poor methods; Use of structured clinical guides for risk; Remaining within remit; Expert involved in all aspects of the report and its preparation; • Inclusion of data supporting opinion; • Answering the instruction questions set. Copyright Professor Jane L. Ireland, 2012 23

Recommendations (e. g. ’s) • Experts should be registered with their regulatory body (in

Recommendations (e. g. ’s) • Experts should be registered with their regulatory body (in the UK: HPC) and have full membership of an APPLIED division with the BPS; Need to educate on this; • Competence and continuing practice is key. Need to rethink about experts who are not in practice (and how you define ‘in practice’); • Not using graduate psychologists or assistants to conduct assessments/interviews for reports; • Periodically reviewing quality of reports; Working with professional bodies on this, perhaps including peer review? ; • Encourage provision of provisional and alternative opinions; Copyright Professor Jane L. Ireland, 2012 24

 • Periodically reviewing quality of reports; Working with professional bodies on this, perhaps

• Periodically reviewing quality of reports; Working with professional bodies on this, perhaps including peer review? ; • Being very cautious over psychometric data – Daubert criteria would assist here; • Using well developed psychological theory and EXPECTING this in reports; • Not paying for reports that do not meet quality expectations (e. g. that do not answer instruction questions), or reducing the fee to reflect this; • Training the judiciary (and other professional groups) on what to expect for good quality reports; Copyright Professor Jane L. Ireland, 2012 25

 • Not paying for reports that do not meet quality expectations (e. g.

• Not paying for reports that do not meet quality expectations (e. g. that do not answer instruction questions), or reducing the fee to reflect this; • Training the judiciary (and other professional groups) on what to expect for good quality reports; • Providing experts with feedback on their report quality; • Enforcing the CPR as much as possible (e. g. Not paying unless compliant or reducing payment); Copyright Professor Jane L. Ireland, 2012 26

 • Any questions? • JLIreland 1@uclan. ac. uk • caireland@uclan. ac. uk Copyright

• Any questions? • JLIreland 1@uclan. ac. uk • caireland@uclan. ac. uk Copyright Professor Jane L. Ireland, 2012 27